Kerala High Court: P. Somarajan J., allowing the present criminal miscellaneous case, clarified the law related to anticipatory bail under Section 438 of Criminal Procedure Code, 1973.
The State Government came up challenging the anticipatory bail granted under Section 438 CrPC. by the Sessions Judge on the simple reason that no crime was registered against the accused/first respondent till that time. Interestingly, within one month the first respondent was impleaded in the array of accused. The crime was earlier registered on the allegation of offence under Section 307, 324 read with Section 34 Penal Code, 1860 but later, Section 326 IPC was incorporated as well.
The present application is submitted both under Section 482 and 439(2) CrPC on the allegation that the earlier order granting anticipatory bail was used by the first respondent to avoid his arrest in connection with his impleadment subsequently as an accused in the existing crime.
Whether an anticipatory bail, allowed in the absence of an FIR, permissible as per laws of Criminal Procedure?
The Court made the following observation in addition to its decision;
“No blanket order should be passed under Section 438 Cr.P.C. to prevent the accused from being arrested when there is no crime registered against him. The procedure to be adopted is to direct the investigation to comply with the requirement under Section 41 A Cr.P.C., before effecting the arrest of accused so as to enable him to exhaust the remedy under Section 438 Cr.P.C. The defect crept in the order cannot be cured under Section 439(2) Cr.P.C. because of the reason that the accused will get a right to exhaust the remedy under Section 438 Cr.P.C. based on the subsequent accusation and it cannot be curtailed by invoking the jurisdiction under Section 439(2) Cr.P.C. By reserving the right of the first respondent to exhaust the remedy under Section 438 Cr.P.C. based on the present accusation, it is fit and proper to set aside the order granting anticipatory bail on the ground of non-registration of crime.”
While allowing the instant petition, the Court said, “When no crime was registered against the first respondent, it is not permissible to grant anticipatory bail, on the reason that it would act as a blanket as against all sort of accusations which may arise in future against the said person.”[State of Kerala v. Ansar M.C., 2020 SCC OnLine Ker 4569, decided on 21-10-2020]
Sakshi Shukla, Editorial Assistant has put this story together